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Labor Dept. Asks Court To Close Massey Mine In Ky.

The Labor Department took an unprecedented step against a Kentucky coal mine Wednesday, asking that a federal judge shut it down immediately to protect the lives of those who work there.

In filing for a preliminary injunction in U.S. District Court, the government cites persistently dangerous conditions in Massey Energy's Freedom Mine No. 1 in Pike County. The action — the toughest enforcement action available to federal regulators — would shut down the mine until safety hazards are addressed and Massey Energy demonstrates it can operate the mine safely.

The Freedom Mine employs about 130 miners and was cited for safety violations more than 700 times this year alone.

The move is viewed by mine safety experts as one response to the deadly explosion in April at Massey's Upper Big Branch mine in West Virginia. Twenty-nine mine workers died in that tragedy, which has triggered civil and criminal investigations.

For 33 years, the agency has had the authority to take mining companies to federal court when they have serious and persistent safety violations. But this "injunctive relief" section of the Federal Mine Safety and Health Act has not been invoked until now.

Section 108(a)(2) of that law authorizes the Labor Department to seek restraining orders, preliminary or permanent injunctions and other federal court orders when a mining company "is engaged in a pattern of violation" that "constitutes a continuing hazard to the health or safety of miners."

The non-union Freedom Energy Mine No. 1 "has a high risk level for a fatal accident...on any given day" writes James Poynter, an assistant district manager at the Mine Safety and Health Administration (MSHA), in a document filed in federal court on Wednesday.

"MSHA continues to find serious and threatening conditions at this mine," Poynter adds, even after federal officials met multiple times with Freedom Energy managers about conditions at the mine. The most recent meeting cited took place in July.

"MSHA has used all the tools available to it in the regulatory scheme in an attempt to bring this operator into compliance," Poynter concludes.

In a statement, Massey Energy says Freedom "has struggled to comply with newer MSHA standards" because it's an older and larger mine. But, the statement adds, "Massey does not believe the mine is unsafe."

CEO Don Blankenship personally provided a safety briefing to the day shift at Freedom on Oct. 29, when all of the company's underground coal mines stopped production and focused on safety.

Earlier that week, Blankenship spoke generically about older and larger mines like Freedom that generate more safety violations.

"They're getting those violations not because we feel like the mine is more dangerous or because we're not trying real hard but there's so much area" underground, Blankenship said. Some, he continued, have millions of square feet and conveyor belts miles long, "and if you want to find [safety violations] you can pretty much find that in a mine of that size."

"The bigger, older mines are much more difficult to avoid violations," Blankenship said. He suggested some may have to be closed.

In its statement today, Massey said closing Freedom is now a possibility.

"Due to the mine's age and size, the Company is considering idling the mine until it can ensure that the mine will meet current MSHA standards," the statement said. And, if that happens, it continued, "every effort will be made to reassign the miners to nearby locations."

But in its request for a court-ordered shutdown, the Labor Department asks the court to force Massey to pay Freedom miners while the mine is closed for safety improvements.

Freedom Energy Mine No. 1 had a federal safety violations rate in 2009 that precisely matches the national average. But so far this year, Freedom's actual number of violations exceeds its total for all of last year.

The injury rate at the mine last year is close to half the national rate for 2009, according to an NPR analysis of federal mine safety data. That same data indicates that no deaths have occurred at Freedom since 1995, the first year fatality data is reported on MSHA's website.

Still, "the risk of harm to miners is much worse at Freedom than it is at other comparable mines," MSHA's Poynter contends.

And Labor Department Solicitor Patricia Smith notes Massey has admitted under-reporting injuries by more than 30 percent, "so the fact that it has an average injury rate may not actually reflect reality."

Court Supervision

In its federal court complaint, the Labor Department seeks a preliminary injunction placing the mine under court supervision and shutting it down until safety hazards are addressed and Massey Energy demonstrates it can operate the mine safely.

Court documents and state and federal records obtained by NPR cite persistent safety violations involving accumulations of flammable and explosive coal and coal dust, the threat of rock falls, ventilation or air flow in the mine, hazardous electrical equipment, spotting and recording dangers and emergency evacuation procedures.

MSHA already has the authority to shut down all or parts of mines for serious safety violations but mining resumes as soon as immediate problems are addressed.

Fines are also levied by MSHA but mining companies routinely appeal fines and it can take years for those appeals to be resolved. Right now, more than 18,000 citations and fines are waiting for administrative court action.

"What I think has happened over many, many years is that there's a growing frustration with the citation, abatement, penalty process where the mine operators continue to violate the same standards and there is no permanent fix to serious problems," says Ed Clair, MSHA's former top lawyer, who spent more than two decades at the agency.

History Of Safety Violations

The Freedom Mine has a history of serious and repeated safety violations. Two hundred of its federal citations this year are classified as "serious and substantial," according to MSHA records, and 50 are listed as an "unwarrantable failure" to comply with mine safety law.

"Unwarrantable failure means you knew there was a violation and didn't fix it or you should have known...because it was open and obvious and you didn't fix it," says Tony Oppegard, a former mine safety prosecutor and regulator who represents coal miners in lawsuits against mining companies.

"This is a troubled mine," Oppegard adds. "And it's long past time that that (injunctive relief) section of the law (is) used."

MSHA records show that the biggest repeated problem at Freedom is failure to clean up or neutralize loose coal and coal dust, which can feed and accelerate fires and explosions.

Freedom is also a "gassy" mine — 1 million to 2 million cubic feet of methane gas naturally seeps in every day, according to MSHA records. Methane is highly explosive at certain concentrations so the daily presence of such large quantities of the gas increases the potential for explosions.

Mines are required to remove excessive coal and coal dust and spray the mine with crushed limestone or "rock dust" to diminish the possibility of ignition. But documents filed in federal court cite numerous incidents involving loose coal and coal dust at the Freedom Mine:

Nov. 10, 2008 — Inspectors issue a citation for "high negligence" and an unwarrantable failure after finding loose coal and coal dust as much as two feet deep and stretching 140 feet. The citation reads: "The operator knew and had knowledge of this hazardous condition."

May 14, 2009 — An inspector notes highly explosive "float" coal dust spread more than two miles underground.

Nov. 13, 2009 -- After another coal dust violation, an inspector notes it "took a total of 14 miners for a total of 10 (nine-hour) shifts" to clean up the excessive coal. "Mine management has failed to abate" an earlier coal dust citation, another inspector writes. "Loose coal is still present...(and) the conveyor belt and bottom return rollers are turning in the combustible material for a distance of 12 feet in length and approximately 2 feet deep"

(Machinery churning in loose coal can create enough friction to ignite a fire or explosion, according to another inspector in a separate citation.)

April 12, 2010 — After citing Freedom for coal dust in and around machinery and electrical components that can produce sparks, an inspector wrote: "This condition is obvious and extensive...and the operator has been placed on notice."

May 20, 2010 -- After yet another coal dust citation, an inspector notes: "Operator has been cited for this condition 281 times in twenty four months."

Safety inspections and reports compiled by MSHA and Kentucky's Office of Mine Safety and Licensing cite repeated violations involving rock falls. An MSHA inspector noted 117 such violations in the last two years. Poynter writes in his court declaration that two miners would have been killed in one of six rock falls since August if a power outage hadn't kept them away.

Ventilation is also listed as a persistent problem. Proper ventilation sweeps away explosive and toxic gases. But federal inspectors found dead or little airflow at times and air flowing in the wrong direction.

"This is the mine that we believe is one accident away from possible tragedy," says Labor Department Solicitor Smith.

Getting Tough

"This mine is, in essence, on a downward slide," says Celeste Monforton, a former federal mine safety official who is one of the independent investigators reviewing the Upper Big Branch disaster. "This is the exact type of mine, I would imagine, the drafters of the Mine Act had envisioned when they put in this very serious provision that would allow the agency to go to court."

Monforton reviewed the federal safety record of the Freedom Mine at NPR's request.

"Despite the agency's efforts to send a message to the mine that they are violating the law, in their subsequent inspections they even had more citations and orders than in the previous inspection period," Monforton says.

Monforton calls injunctive relief "the nuclear option" because it's considered MSHA's toughest enforcement tool. And the agency has been under pressure to get tough since the loss of 29 lives at the Upper Big Branch mine in April.

A few days after the final victims were removed from the mine, President Obama told reporters gathered in the White House Rose Garden that it was time to consider all of the government's enforcement tools to protect miners.

"We need to take a hard look at our own practices and our own procedures to ensure that we're pursuing mine safety as relentlessly as we responsibly can," Obama said.

At a Senate hearing in May, Assistant Labor Secretary Joe Main said the agency was considering injunctive relief cases "to go after and shut down mines that have records like Upper Big Branch."

And in June, federal mine safety chief Kevin Stricklin wrote this about Freedom Energy Mine #1 in an internal e-mail obtained by NPR: "We need to use this mine as a test case."

A 'Wake-Up Call'

Former MSHA solicitor Ed Clair says the agency has resisted going to court in the past because it had other options that seemed to work. He says mine deaths were declining until 2006.

Clair also sees risk in putting mine safety regulation in the hands of a federal judge. That puts the resolution of safety problems in a judge's control, Clair suggests, and leaves the regulators on the sidelines.

A judge may also have this question: If this mine is so dangerous, why did it take the Labor Department this long to go to court? It's been almost five months, after all, since Stricklin cited the Freedom Mine as the test case.

A judge's rejection of the case is the biggest risk, Clair says, "And that could establish a very adverse precedent for using this provision and perhaps somehow otherwise circumscribe the agency's enforcement authority."

But with 56 coal miners dead in five disasters since 2006, Clair sees the wisdom in breaking precedent.

Mine safety expert Celeste Monforton believes the most recent tragedy has a lot to do with the Labor Department's action now.

"The Upper Big Branch mine disaster was the harshest wake-up call imaginable," Monforton says. "I'm not sure the moment would have come if not for the 29 lives lost."

The first hearing in the Freedom Mine case is expected in the next several weeks in a federal court in eastern Kentucky.